Excerpt:trust - trustee obtaining articles for use and benefit of temple--temple property, whether liable for price. - - 760 is useful for the position 'that it is well settled that a person executing a negotiable instrument will be personally bound thereby, unless there is a clear intention that he does not intend to incur any personal liability but limits the recourse of the payee or holder to the person whom, or the estate which he represents either as trustee, executor, guardian or agent......opinion that the plaintiff was entitled on the facts of that case to a decree direct against the trust property does not appear.6. in this case i must hold that there is no ground for holding that the trust property can be reached direct by the plaintiff and if this conflicts (a fact of which i am by no means certain) with the opinion expressed by the learned judge in the case referred to, i can only say that sitting alone i am bound by the decisions of the benches of this court and especially by the decision in swaminaiha aiyar v. srinivasa aiyar 38 ind. cas. 172, which was a case of a trustee of a temple and also a case where there was a promissory note, though the suit was framed not merely on that basis. the suit raised the question whether the debt was contracted for the benefit.....

Judgment:

Odgers, J.

1. This is a petition to revise the judgment of the Subordinate Judge of Tanjore in a suit brought on an account by the plaintiff for the recovery of a certain sum of money, being the value of articles alleged to be necessary for the maintenance of an idol and the daily worship of the plaint temple supplied to a deceased trustee, the father of the defendants Nos. 1 to 4. Mr. Somayya appears for the 17th defendant, who is the Receiver appointed by the Subordinate Judge's Court to take charge of the temple properties pending the decision, as I understand, of a scheme suit. The learned Subordinate Judge gave a decree against defendants Nos. 1 to 4 out of their family property and the plaintiff has raised, as a point of law, the contention that the learned Subordinate Judge ought to have given him a decree against the temple properties direct, The plaint is not printed, but from the judgment of the learned Judge it appears that the plaintiff contended that as the dealings ware for the use and benefit of the plaint temple, ha is entitled to a decree as against the assets of the temple also. The learned Subordinate Judge, after considering the law on the subject, decreed as aforesaid, and I have to consider in this revision petition whether he is right in law.

2. The learned Vakil for the plaintiff petitioner, Mr. T.S. Ramaswami Aiyar, first draw my attention to the ruling in Frosunno Kumari Debya v. Golab Chand Baboo 2 I.A. 145, and relies on a passage of the report in which their Lordships of the Privy Council say: 'It would seem to follow that the person so entrusted must of necessity be empowered to do whatever may be required for the service of the idol, and for the benefit and preservation of its property, at least to as great a degree as the manager of an infant heir.' The question raised in that appeal was whether certain decrees, in which execution had been taken against the rents and profits of debutter lands, could be attached and appropriated by virtue of judgments obtained against a former shebait in respect of debts properly incurred by him for the service and benefit of the temple. Their Lordships held that there being no fraud in such decrees, they must decide against the claim to have the properties released from attachment on the ground that they were obtained by fraud and were in no way binding on the succeeding shebaits It is not disputed by Mr. Somayya for the respondent that in a properly framed proceeding the temple property may be reached even by a creditor dealing with the trustees. As he points out, the creditor may insist on taking hypothecation or mortgage of the temple property in order that his claim to proceed against the property may thereafter be undisputed. He may proceed against the trustee personally and be content with a personal decree against him, or he may again proceed against the trustee but claim to be subrogate 1 to the rights of the trustee, as between the latter and the temple property. In my opinion the decision of the Privy Council quoted above cannot be cited as an authority that in all cases where a trustee has incurred debts on behalf of the temple the plaintiff is entitled to a decree against the temple property without more.

3. The nest case in order of date cited by Mr. Ramaswami Aiyar is Ammalu Ammal v. Namagiri Ammal 43 Ind. Cas. 760 , the case of a promissory note executed by an executor. The learned Judges in that case, Sadasiva Aiyar and Kumaraswami Sastri, JJ., differed as to whether on the facts of the case as presented before them the plaintiff ought to be allowed the right of subrogation, the former learned Judge holding against the latter for such claim. I do not propose to say anything in this case about the right of subrogation, because the petitioner's Vakil did not and could not contend that the suit as framed gives any scope for such a claim. But the casein Ammalu Ammal v. Namagiri Ammal 43 Ind. Cas. 760 is useful for the position 'that it is well settled that a person executing a negotiable instrument will be personally bound thereby, unless there is a clear intention that he does not intend to incur any personal liability but limits the recourse of the payee or holder to the person whom, or the estate which he represents either as trustee, executor, guardian or agent.' In this case although the suit was brought on an account, there was in fact a promissory note for the amount claimed.

4. The next case in order of date is Adiraja Arsu v. Sheik Budan Sahib 44 Ind. Cas. 816, a case in which Mr. Justice Bakewell considers the effect of the Privy Council ruling in Frosunno Kumari Debya v. Golab Chani Baboo 2 I.A. 145 as considered in the case of Palaniappa Chetty Sreemath Deivatikamony Fandura Sannadhi 39 Ind. Cas. 722 , and the learned Judge goes on to say that 'the manager has no authority to pledge the credit of the temple, because the result would be that strangers to the trust would be able to proceed against the general property of the temple in execution of their decrees,' The point actually decided was that the temple funds could not be made liable for the purchase of fire works, as being unnecessary for the performance of the trust. Lahshmindraihirtha Swamiar v. Raghavendra Rao 59 Ind. Cas. 287 lays down that in a suit to recover a simple money debt incurred by the sanyasi head of an institution, the trust can be made liable on the ground that a Hindu sanyasi has no pergonal credit whatever. Sadasiva Aiyar, J., points out in considering the prior decisions that 'the principle underlying these decisions is that such a trustee, or other person in the position of trustee, has got his personal credit to pledge and the presumption should be that when he incurred a debt with out charging the trust properties, the creditor lent the money on such personal credit and could look to that credit alone and to the principle of subrogation for recovery of his loan. I think the same principle would apply even to an ordinary trustee of a temple who is not even a sanyasi.''

5. Finally reliance is placed on the judgment of Mr. Justice Seshagiri Aiyar in C.R.P. No. 602 of 1918. There the learned Judge draws a distinction between the principle which applies to a case of borrowing and that of purchasing on credit in the ordinary course of management for the daily conduct of worship in the temple. The latter would of course, as decided by the learned Judge, be a necessary purpose for which, in the opinion of the learned Judge, the trust estate would be chargeable. The learned Judge remanded the case to be disposed of in the light of his observations. Whether he was of opinion that the plaintiff was entitled on the facts of that case to a decree direct against the trust property does not appear.

6. In this case I must hold that there is no ground for holding that the trust property can be reached direct by the plaintiff and if this conflicts (a fact of which I am by no means certain) with the opinion expressed by the learned Judge in the case referred to, I can only say that sitting alone I am bound by the decisions of the Benches of this Court and especially by the decision in Swaminaiha Aiyar v. Srinivasa Aiyar 38 Ind. Cas. 172, which was a case of a trustee of a temple and also a case where there was a promissory note, though the suit was framed not merely on that basis. The suit raised the question whether the debt was contracted for the benefit of the temple and whether the plaintiff was entitled to any relief against the trust property. The learned Judges there held that 'the difficulty in the way of the appellant is that he is not entitled to any but a personal decree against the 1st defendant. He did not obtain any charge upon the temple property, all that he obtained was a promise on the part of the 1st defendant to pay the debt. The fact that the money was utilised and was intended to be utilised for the benefit of the temple cannot entitle the plaintiff to have a decree charging the amount due under the promissory note against the temple property.' On the pleadings and on the facts laid before me I am bound to come to the conclusion that this is the law and to decide that the plaintiff cannot, in the present proceeding at least, claim a decree against the temple property.